# C_2016287EN.01000601.xml

| 8.8.2016 | EN | Official Journal of the European Union | C 287/6 |
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8.8.2016

EN

Official Journal of the European Union

C 287/6

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Judgment of the Court (Fifth Chamber) of 2 June 2016 (request for a preliminary ruling from the Oberlandesgericht Düsseldorf — Germany — Dr. Falk Pharma GmbH v DAK-Gesundheit

(Case C-410/14) (1)

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((Reference for a preliminary ruling - Public contracts - Directive 2004/18/EC - Article 1(2)(a) - Concept of ‘public contract’ - Scheme for acquiring goods consisting of the authorisation as a supplier of any economic operator who meets the predetermined criteria - Supply of medicinal products that are refundable under a general social security scheme - Contracts concluded between a statutory health insurance fund and all the suppliers of medicinal products based on a given active ingredient who consent to a rebate on the sale price at a predetermined rate - Legislation providing, in principle, for the substitution of a refundable medicinal product marketed by an operator not having concluded such a contract by a medicinal product of the same type marketed by an operator having concluded such a contract))

(2016/C 287/07)

Language of the case: German

Referring court

Referring court

Oberlandesgericht Düsseldorf

Parties to the main proceedings

Parties to the main proceedings

Applicant: Dr. Falk Pharma GmbH

Applicant:

Defendant: DAK-Gesundheit

Defendant:

Intervener: Kohlpharma GmbH

Intervener:

Operative part of the judgment

Operative part of the judgment

| 1. | Article 1(2)(a) of Directive 2004/18/EC of the European Parliament and of the Council of 31 March 2004 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts must be interpreted as meaning that a contract scheme, such as that in the main proceedings, through which a public entity intends to acquire goods on the market by contracting throughout the period of validity of that scheme with any economic operator who undertakes to provide the goods concerned in accordance with predetermined conditions, without choosing between the interested operators and, allows them to accede to that scheme throughout its validity, does not constitute a public contract within the meaning of that directive. |
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1.

Article 1(2)(a) of Directive 2004/18/EC of the European Parliament and of the Council of 31 March 2004 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts must be interpreted as meaning that a contract scheme, such as that in the main proceedings, through which a public entity intends to acquire goods on the market by contracting throughout the period of validity of that scheme with any economic operator who undertakes to provide the goods concerned in accordance with predetermined conditions, without choosing between the interested operators and, allows them to accede to that scheme throughout its validity, does not constitute a public contract within the meaning of that directive.

| 2. | In so far as the subject matter of an authorisation procedure, such as that at issue in the main proceedings, is of certain cross-border interest, that procedure must be conceived and organised in accordance with the fundamental rules of the FEU Treaty, in particular, the principles of non-discrimination and equal treatment between economic operators and the consequent obligation of transparency. |
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2.

In so far as the subject matter of an authorisation procedure, such as that at issue in the main proceedings, is of certain cross-border interest, that procedure must be conceived and organised in accordance with the fundamental rules of the FEU Treaty, in particular, the principles of non-discrimination and equal treatment between economic operators and the consequent obligation of transparency.

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(1)  OJ C 409, 17.11.2014.

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